Health officials, court clash over Covid-19 vaccine pass mandates

Legal experts say the mandatory vaccine pass raises points of constitutional contention that stretch beyond public health.

Kim Arin

Kim Arin

The Korea Herald


The court decided on Tuesday to temporarily block the use of vaccine passes at educational establishments. At this study venue in Suwon, the machine scanning QR-coded passes was stopped from use on Wednesday morning. (Yonhap)

January 6, 2022

The mandatory vaccine pass continues to fan controversy, with legal and health authorities clashing over its necessity at some places and possible rights violations.

Legal experts say the mandatory vaccine pass, among other disease control policies, raises points of constitutional contention that stretch beyond the realm of public health and science. Health authorities on the other hand say the pass is necessary to contain the spread and allow the country to return to normal.

A Seoul administrative court on Tuesday afternoon temporarily blocked the vaccine pass mandate at educational facilities such as cram schools, saying the policy “seriously disadvantages people who are not vaccinated.”

The Ministry of Health and Welfare mandate, which came into effect about a month ago, requires people to present proof of being fully vaccinated no longer than six months ago or a negative PCR test result issued within the last 48 hours to enter a wide array of public places.

The court, citing government statistics, said that “the risk of spreading COVID-19 could not be said to be significantly greater in people who are not vaccinated so as to justify restricting their visits to these facilities.”

The court found that although the vaccines are highly effective in preventing hospitalizations and deaths, there wasn’t enough evidence to justify the use of passes at educational establishments at the expense of constitutional rights.

Government: ‘Vaccine pass instrumental to return to normal’

Son Young-rae, spokesperson for the Ministry of Health and Welfare, said at Wednesday’s news briefing the vaccine pass is “instrumental to continue progress toward the return to normal.”

Amid a growing surge and strained medical systems, minimizing cases among the unvaccinated was “the top policy priority,” he said.

He said the ministry analysis showed unvaccinated people were four to five times more likely to fall severely — even fatally — ill from COVID-19.

“Only 6 percent of adults 18 and up remain unvaccinated in Korea. And yet they have made up 30 percent of all cases found in people 12 and older for the past two months, and 53 percent of all ICU admissions and deaths,” he said.

“That means about half of our critical care resources are devoted to treating unvaccinated patients.”

He said the vaccine pass policy is “intended to reduce infections of unvaccinated people, which will consequently lead to a decline in hospitalizations and deaths and ease the burden on hospitals.”

In response to press inquiries asking how effective the passes have proven to be so far in controlling the recent surge, Son said that “could not be quantified.” “As the vaccine pass system was implemented, more intensive social distancing was restored. It’s hard to weigh the impact of one policy separately,” he said.

At the request of the Health Ministry, the government will be filing an appeal “immediately,” Justice Minister Park Beom-kye told reporters Wednesday morning. He added that he found the court’s reasoning related to the risk unvaccinated people pose to be “rather questionable.”

Health experts: ‘Understandable, but worrying precedent’

Dr. Jung Jae-hun, who is advising the prime minister on COVID-19 response, hit back at the court decision in a Facebook statement, saying it “appears to lack medical, scientific understanding.”

He said that the court was “evidently wrong” to say that unvaccinated people “do not pose significantly higher risk of spreading COVID-19.” The vaccines are still highly protective against infections, especially in younger people, he explained.

The spirit of a vaccine pass is “to lower the risk of an infected person coming into contact with others in public places. The presence of an infected person does raise the risk of a spread,” he said, echoing the Health Ministry’s assessments.

The pass also served a purpose of “shielding unvaccinated people” from possible exposure, as they are at a higher risk of severe disease, he said.

“At the end of the day, we have to respect what the court has decided. But the judicial branch, too, must listen to the opinions of medical experts and public health authorities as its decisions would greatly affect the direction of COVID-19 response,” he said.

“I understand where these concerns are coming from. Public health authorities should address them and be prepared to provide acceptable explanations.”

Dr. Kim Woo-joo, an infectious disease specialist at Korea University Medical Center, said such restrictive measures should be adopted based on risk assessment, rather than applying them indiscriminately across the board.

“Outdoor parks, book cafes where you don’t take off masks are not that dangerous and yet you still need passes to visit them,” he pointed out. The government should be able to prove “to what extent the use of vaccine passes at these relatively low-risk places can contribute to slowing the spread,” he said.

Another infectious disease specialist, Dr. Eom Joong-sik of Gachon University Medical Center, worried that with the suspension of vaccine passes, a dangerous precedent might have been set for the country’s COVID-19 control measures moving forward.

“I see how extending the pass system to essential places like food stores might be problematic,” he said.

“But what if people started bringing other necessary restrictions to stem the spread, like social distancing and mask wearing, to the court and the court decides to halt them at important junctures?”

Legal experts: ‘Some things go beyond science’

Physician-turned-lawyer Park Ho-kyun said the court’s questioning of vaccine pass mandates Tuesday would be the first concerning the possible rights violations of a series of disease control restrictions put forth over the last two years.

“Disease control measures are government decisions, but in a large part they work by way of mobilizing private resources like business hours and individual participation,” he said. “How far we can accept them as a society is a question that stretches beyond the realm of science.”

He said not all of the pandemic policy decisions could strictly be science-based. “You could argue classrooms are a dangerous place for the virus to spread, for example. But we can’t keep kids out of in-person learning forever.”

As for concerns that the latest action from the court might give rise to future interferences with COVID-19 response, he said that a court’s ruling on pandemic-related restrictions “cannot be considered a final verdict.”

“As our outbreak situation evolves, so too will the court’s decisions. Lockdowns could not be tolerated when cases are scant and hospitals have enough beds. But when hospital admissions are soaring, tougher measures may be acceptable from a health rights perspective,” he explained.

“Even if the court decides to stop the mandate this time, that wouldn’t mean that will be the final call on the matter through the rest of the pandemic. It’s all relative, like how the science on COVID-19 is constantly changing and being updated.”

“People are free to challenge decisions made by government bodies,” he said. As court judgments pile up, it “would give us opportunities to better our guidance on pandemic response in a way that is more considerate of these rights violation concerns.”

Public defense lawyer Shin Min-young said that justifying restrictions that sprung up during the pandemic were a “tug-of-war of rights — those of individual versus public.” “But protecting rights and protecting public health are not mutually exclusive. A lot fall into a gray zone, which is why it’s meaningful to have them contested at the court,” he said.

Shin added that it was important to have “some channels through which expert groups can give the court their opinions on cases with potentially far-reaching impacts.”

Kim Jin-hyun, a former judge now practicing law, said a key point of contention would be whether to permit restricting access to essential services like education in the name of pandemic response. In stopping the pass, the court said no group of people should face discrimination “across all aspects of daily life” because of their status, whether it be cultural or medical.

While in the first month the passes were limited to risky places like bars, which are “arguably less essential,” its scope has been widened to include grocery stores, libraries and other everyday places, he said.

“It would be up to the court to decide which services would count as essential,” he said.

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